CONSIDERATION
25 The issue before the Tribunal was whether and, if so, in what circumstances P&O was Mr O'Sullivan's deemed employer. There is no doubt that it was not the actual employer at the time of the 2014 injury. The Tribunal addressed the submissions Mr O'Sullivan had made, as is evident from the content of [21]-[32] of its reasons and the summary above.
26 The Tribunal was dealing with a preliminary issue and it was not necessary for it to resolve every aspect of the case on a preliminary ruling. Indeed, the Tribunal did no more than to say that it was clear that Mr O'Sullivan was not then an employee of P&O. Therefore, if the compensation claim he lodged on 12 November 2014 was in respect of a 'fresh' injury and the available materials did not establish an essential causal connection to his previous employment by P&O, s 4(4) of the Seafarers Act was of no assistance to him and the claim against P&O must fail.
27 The first two points in the objection can be dealt with together.
28 As to the failure to disclose or identify any question of law, this topic was fully canvassed recently in Haritos in [91], [93] and [94] where the Full Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
91 It is of great importance that the question or questions of law should be stated with precision. That is the point of r 33.12 of the Federal Court Rules, and of its predecessor, O 53, r 3(2). We have set out the present rule above at 3. But the end sought to be achieved by the rule is to have the question of law stated with sufficient precision.
…
93 We also agree that there would be a deficiency in a notice of appeal if the asserted questions of law did no more than invite the Court to embark on a broad and hypothetical enquiry as to the construction and operation of statutory provisions: Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 at [24] per Keane CJ, Finn and Gilmour JJ.
94 In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.
29 While there may be doubt about 'precision' in the framing of this question of law, I would take the intended question of law (which is clearly relevant) 'in substance' to be whether it was open to the Tribunal to introduce a concept of 'fresh' injury when 'fresh' is not provided for in the legislation. On these issues, I consider that the Tribunal was correct. 'Fresh' injury is a term frequently used to indicate a separate injury unrelated to a former injury. The 2014 injury may or may not have been a 'fresh' injury arising out of an independent accident. There is no conclusion as to whether the 2014 injury was an exacerbation of the 1993 injury or 'fresh'. As the Tribunal noted, the interpretation advanced by Mr O'Sullivan would be inconsistent with the legislative purpose and context. As the Tribunal correctly noted (at [30]), the interpretation by Mr O'Sullivan would sever the essential causal connection between 'injury' and 'employment'.
30 As to the third ground of alleged incompetency, the content of the last five paragraphs of the Tribunal's preliminary determination are important. They are as follows:
Ruling
31. Returning to consider the issue I must decide, there are two things to say.
32. Firstly, it is quite clear, and apparently not controversial, that Mr O'Sullivan was not an employee of [P&O] when he hurt his back on 26 August 2014. He had not been an employee of [P&O] since 19 December 1994. Thus, if the compensation claim he lodged on 12 November 2014 is in respect of a fresh 'injury' and the available materials do not establish an essential causal connection to his previous employment by [P&O], s 4(4) is of no assistance to him and his claim against [P&O] must fail.
33. Secondly, if the compensation claim Mr O'Sullivan lodged on 14 November 2014 is in respect of a continuing injury, for which liability has already been accepted by [P&O], s 4(4) operates to preserve [P&O]'s liability for that injury. There is a live question whether Mr O'Sullivan's claim is capable of such a generous or broad interpretation.
34. On this point, I will go no further. If the point is pressed, it may be appropriate to hear the parties and then determine the point.
Orders
35. A telephone directions hearing is to be set down at the earliest convenient date once 14 days have elapsed from the date of this ruling.
(emphasis added)
31 In Rana v Repatriation Commission (2011) 196 FCR 137, Kenny, Stone and Logan JJ stressed (at [31]) that s 44(1) is limited to a decision which has about it a quality of finality on a question of law. The decision in Rana was in the context of a determination of a preliminary issue, much as the present case is, which did not dispose finally of the application for review. Likewise, in the present instance, Mr O'Sullivan's application for review was not fully disposed of because the important question of whether or not it was a fresh injury was not to be addressed or determined. It follows that the appeal is not from a 'decision' for the purpose of s 44(1). Alternatively, if that conclusion is wrong, the decision made by the Tribunal on the preliminary point was manifestly correct.
32 More pertinently, in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18, Perram J noted (at [17]-[19]):
17. Section 44 of the AAT Act confirms the jurisdiction of this Court to entertain the questions thus posed. By contrast, applications under the ADJR Act and under s 39B of the Judiciary Act do not require the stating of such questions. Further, in any judicial review proceedings the Tribunal itself would necessarily be a respondent which is plainly not the case with the present proceeding. For all those reasons I cannot accede to Mr Yao's submission that his notice of appeal is anything but that which it appears to be, namely, an appeal pursuant to s 44 of the AAT Act.
18. That being so the appeal is clearly incompetent. Section 44 of the AAT Act provides for appeals from "decisions". In Director General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 the meaning of the word "decision" in s 44 was examined. The director general had sought to appeal, pursuant to s 44, from the Tribunal's preliminary determination that it had jurisdiction to entertain Ms Chaney's application to review the Department's decision to cancel her widow's pension. A majority of the Full Court (Deane J with whom Fisher J agreed) concluded that the word "decision" in s 44 should, for contextual reasons, be given a narrow reading and that so read it was confined to decisions "which constitute[s] the effective decision or determination of the application for review". The proper construction of "decision" in s 44 is a matter upon which minds might legitimately differ as Northrop J's dissent in Chaney amply demonstrates. However, Chaney has been repeatedly applied in this Court over a number of years: see Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 at 447-448 [18]- [23] per Spender, Graham and Gilmore JJ; and also the analogous reasoning in Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; (2000) 64 ALD 325 at 334-335 [26]- [28].
19. In this case the five decisions under review are decisions by the learned Tribunal member not to issue summonses to give evidence. Such a decision is not, to use the language of Deane J in Chaney, "a decision constitut[ing] the effective decision of determination of the application for review". It follows that the purported appeal is incompetent.
(emphasis added)
33 In this instance, the Tribunal was doing no more than clarifying the circumstances in which s 4(4) of the Seafarers Act would operate. It was not examining the evidence in order to conclude whether or not it applied. It specifically left that question to be resolved later.